Sakshi Education
-Mohan Sai Dutt
Article 17 of Indian Constitution seeks to abolish 'untouchability' and to forbid all such practices. It is basically a "statement of principle" that needs to be made operational with the ostensible objective to remove humiliation and multifaceted harassments meted to the Dalit’s and to ensure their fundamental and socio-economic, political, and cultural rights.
The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to give legal sanction and prevent atrocities against scheduled castes and scheduled tribes.
SC/ST Act:
Recent Judgment Overview
On March 20, the Supreme Court said that the arrest of an accused under the SC/ST Act is not mandatory and recourse to coercive action would be only after preliminary inquiry and sanction by the competent authority.
Coupled with this, the court said, that there was no "absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide".
"..., we direct that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be effected" without the permission of appointing authority in case of public servant or that of Senior Superintendent of Police in case of general public, said the bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit in its judgment.
Originally, the Act allowed for the immediate arrest of suspected offenders upon a complaint and denied anticipatory bail.
Events that followed the judgment:
Protesters, including members of the communities as well as several political parties, have severely criticised the court ruling, stating that it dilutes the Act which aims to protect the marginalised.
SC/ST groups demanded the apex court judgement to be repealed.
Several Dalit outfits called for a nationwide bandh on Monday, April 2 and protests were staged in many parts of the country, mostly in northern India including Bihar, Punjab, Haryana, Rajasthan, Uttar Pradesh and Madhya Pradesh.
At least nine persons are reported to have died in the violence and numerous others injured.
Review petition by the Centre
In its review petition, the Centre said the court had no business to dilute the Act by laying down such guidelines and make it easier for accused persons to escape arrest.
“In the given situation of continuing offences of atrocities against members of SC/ST, it would be more significant and meaningful to affirm the reliance and trust of SC/ST on the statute and not make it easier for the accused to get away from arrest by imposing a preliminary enquiry,” the Centre said.
Instead of being misused, the Act is weakly implemented, the government argued.
Objecting to the court's reasoning that non-availability of anticipatory bail was violative of Article 21 (fundamental right to personal liberty), the government said "while it is important to protect the rights of the accused under Article 21, it would deserve to be considered that the protection of Article 21 as well as Article 17 [abolition of untouchability] is equally available to the members of the SC/ST. The immense pain and injury caused on the commission of offence against SC/ST is the worst form of violation of Article 21 requiring complete and strict implementation of the provisions of the Act".
An accused on anticipatory bail would use his liberty to terrorise his victims and prevent proper investigation. Section 18 of the Act is its “backbone” as it enforces an inherent deterrence and instills a sense of protection amongst members of the SC/STs.
Potential of misuse of an Act cannot be a “valid, justifiable or permissible ground” for diluting its stringent provisions of the Act. If that's the case, the entire criminal law would be rendered toothless, the government argued.
The government reminded the court that the “constitutional goal of equality for all citizens of this country can be achieved only when the rights of the SC/STs are protected”.
Apex Court’s response to the Review Petition
The court says it has only protected innocents from falling prey to arbitrary arrests under the Act.
“Our judgment implements what is said in the Constitution. We are conscious of the rights of the underprivileged and place them at the highest pedestal... but at the same time, an innocent person cannot be falsely implicated and arrested without proper verification. We have not stopped the implementation of the Act. Does the Act mandate the arrest of innocent persons? Our judgment is not against the Act,” Justice Goel addressed Attorney-General K.K. Venugopal. He called the judgement a ‘balance’ between Dalit rights and right of an innocent against arrest in a false case.
The judgement directs a “preliminary enquiry” to be conducted on whether a complaint filed by a Scheduled Caste/Scheduled Tribe member is frivolous or not. An FIR would be registered only after the probe officer, Deputy Superintendent of Police, authenticates the complaint of casteist slur or crime.
At one point, Justice Goel asked Mr. Venugopal how even the Attorney General could function if made a victim of a false complaint.
He said, “People who are agitating would not have read the order.”
“Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This court must enforce such a guarantee.”
In India, SCs and STs have suffered social ostracisation and economic deprivation for centuries. To address this social deficit and achieve the ``dignity of the individual'' was set out as one of the objectives in the Preamble to the Constitution. Article 17 abolished untouchability and made it “an offence punishable in accordance with law”. Despite laws, the abhorrent practice of discrimination and violence against the SCs and STs continues.
Statistics show that the conviction rate under the Act is low and the less-than-enthusiastic pursuit of investigation and prosecution reflects in the disposal of cases by courts. On the other hand, most result in acquittal/withdrawal or compounding of most cases against the accused too. While attempting to achieve the mandate of Article 17, courts cannot be oblivious to the rampant misuse of the law in question. The accused too has a right to fair trial. “The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance. It has also been used against public servants performing their bona fide duties,” noted the apex court and has sought to address the issue by striking a balance with the spirit of the law and protecting liberty of an individual by introducing safeguards.
The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 is an Act of the Parliament of India enacted to give legal sanction and prevent atrocities against scheduled castes and scheduled tribes.
SC/ST Act:
- The SC/ST Act lists 22 offences relating to various patterns or behaviors inflicting criminal offences and breaking the self-respect and esteem of the scheduled castes and tribe’s community. This includes denial of economic, democratic and social rights, discrimination, exploitation and abuse of the legal process.
- According to the SC/ST Act, the protection is provided from social disabilities such as denial of access to certain places and to use customary passage, personal atrocities like forceful drinking or eating of inedible food, sexual exploitation, atrocities affecting properties, malicious prosecution, political disabilities and economic exploitation.
- For speedy trial, Section 14 of the SC/ST Act provides for a Court of Session to be a Special Court to try offences under this Act in each district.
- The prime objective of the SC/ST Act is to deliver justice to marginalised through proactive efforts, giving them a life of dignity, self-esteem and a life without fear, violence or suppression.
Recent Judgment Overview
On March 20, the Supreme Court said that the arrest of an accused under the SC/ST Act is not mandatory and recourse to coercive action would be only after preliminary inquiry and sanction by the competent authority.
Coupled with this, the court said, that there was no "absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide".
"..., we direct that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be effected" without the permission of appointing authority in case of public servant or that of Senior Superintendent of Police in case of general public, said the bench of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit in its judgment.
Originally, the Act allowed for the immediate arrest of suspected offenders upon a complaint and denied anticipatory bail.
Events that followed the judgment:
Protesters, including members of the communities as well as several political parties, have severely criticised the court ruling, stating that it dilutes the Act which aims to protect the marginalised.
SC/ST groups demanded the apex court judgement to be repealed.
Several Dalit outfits called for a nationwide bandh on Monday, April 2 and protests were staged in many parts of the country, mostly in northern India including Bihar, Punjab, Haryana, Rajasthan, Uttar Pradesh and Madhya Pradesh.
At least nine persons are reported to have died in the violence and numerous others injured.
Review petition by the Centre
In its review petition, the Centre said the court had no business to dilute the Act by laying down such guidelines and make it easier for accused persons to escape arrest.
“In the given situation of continuing offences of atrocities against members of SC/ST, it would be more significant and meaningful to affirm the reliance and trust of SC/ST on the statute and not make it easier for the accused to get away from arrest by imposing a preliminary enquiry,” the Centre said.
Instead of being misused, the Act is weakly implemented, the government argued.
Objecting to the court's reasoning that non-availability of anticipatory bail was violative of Article 21 (fundamental right to personal liberty), the government said "while it is important to protect the rights of the accused under Article 21, it would deserve to be considered that the protection of Article 21 as well as Article 17 [abolition of untouchability] is equally available to the members of the SC/ST. The immense pain and injury caused on the commission of offence against SC/ST is the worst form of violation of Article 21 requiring complete and strict implementation of the provisions of the Act".
An accused on anticipatory bail would use his liberty to terrorise his victims and prevent proper investigation. Section 18 of the Act is its “backbone” as it enforces an inherent deterrence and instills a sense of protection amongst members of the SC/STs.
Potential of misuse of an Act cannot be a “valid, justifiable or permissible ground” for diluting its stringent provisions of the Act. If that's the case, the entire criminal law would be rendered toothless, the government argued.
The government reminded the court that the “constitutional goal of equality for all citizens of this country can be achieved only when the rights of the SC/STs are protected”.
Apex Court’s response to the Review Petition
The court says it has only protected innocents from falling prey to arbitrary arrests under the Act.
“Our judgment implements what is said in the Constitution. We are conscious of the rights of the underprivileged and place them at the highest pedestal... but at the same time, an innocent person cannot be falsely implicated and arrested without proper verification. We have not stopped the implementation of the Act. Does the Act mandate the arrest of innocent persons? Our judgment is not against the Act,” Justice Goel addressed Attorney-General K.K. Venugopal. He called the judgement a ‘balance’ between Dalit rights and right of an innocent against arrest in a false case.
The judgement directs a “preliminary enquiry” to be conducted on whether a complaint filed by a Scheduled Caste/Scheduled Tribe member is frivolous or not. An FIR would be registered only after the probe officer, Deputy Superintendent of Police, authenticates the complaint of casteist slur or crime.
At one point, Justice Goel asked Mr. Venugopal how even the Attorney General could function if made a victim of a false complaint.
He said, “People who are agitating would not have read the order.”
“Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This court must enforce such a guarantee.”
In India, SCs and STs have suffered social ostracisation and economic deprivation for centuries. To address this social deficit and achieve the ``dignity of the individual'' was set out as one of the objectives in the Preamble to the Constitution. Article 17 abolished untouchability and made it “an offence punishable in accordance with law”. Despite laws, the abhorrent practice of discrimination and violence against the SCs and STs continues.
Statistics show that the conviction rate under the Act is low and the less-than-enthusiastic pursuit of investigation and prosecution reflects in the disposal of cases by courts. On the other hand, most result in acquittal/withdrawal or compounding of most cases against the accused too. While attempting to achieve the mandate of Article 17, courts cannot be oblivious to the rampant misuse of the law in question. The accused too has a right to fair trial. “The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance. It has also been used against public servants performing their bona fide duties,” noted the apex court and has sought to address the issue by striking a balance with the spirit of the law and protecting liberty of an individual by introducing safeguards.
Published date : 11 Apr 2018 04:48PM
